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National Treasury Employees Union and NTEU Chapter 61 (Union) and Department of the Treasury, Internal Revenue Service, Albany District, New York (Agency)&nbsp;&nbsp;

[ v07 p304 ] 07:0304(47)NG
The decision of the Authority follows:

7 FLRA No. 47
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU CHAPTER 61
Union
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
ALBANY DISTRICT, NEW YORK
Agency
Case No. O-NG-238
DECISION AND ORDER ON NEGOTIABILITY ISSUE
THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE FEDERAL LABOR
RELATIONS AUTHORITY (THE AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5
U.S.C. 7101 ET SEQ.). THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE
UNION'S PROPOSAL WHICH SEEKS TO NEGOTIATE ADDITIONS AND DELETIONS TO A
PROPOSED AGENCY DIRECTIVE ENTITLED, "IMPLEMENTATION PROCEDURES FOR THE
CONDUCT OF AFTER-HOURS SECURITY CHECKS/ENTRY INTO UNLOCKED DESK DRAWERS
AND FILE CABINETS." THE AGENCY'S DIRECTIVE, SET OUT IN APPENDIX A,
HERETO, WOULD ESTABLISH A PROCEDURE FOR THE AGENCY TO SEARCH, AFTER
HOURS, THE DESKS AND FILE CABINETS OF EMPLOYEES, IF FOUND TO BE
UNLOCKED, TO SEE IF ANY "PROTECTED" MATERIAL WAS LEFT INSIDE. ANY
PROTECTED MATERIAL SO FOUND WOULD BE REMOVED AND SECURED ELSEWHERE. THE
UNION'S PROPOSAL, SET OUT IN APPENDIX B, HERETO, WOULD REQUIRE THE
AGENCY, INSTEAD, SIMPLY TO SECURE ALL UNLOCKED DESKS AND FILE CABINETS
WITHOUT SEARCHING DESKS AT THAT TIME TO SEE IF ANY PROTECTED MATERIAL
WAS ACTUALLY INSIDE. THE SEARCH FOR PROTECTED MATERIAL IN THE UNLOCKED
DESKS, UNDER THE PROPOSAL, WOULD BE POSTPONED UNTIL THE INDIVIDUAL WHO
NORMALLY USES THE DESK IS PRESENT FOR THE SEARCH. FURTHERMORE, THE
UNION'S PROPOSAL WOULD DELAY THE IMPLEMENTATION DATE OF THE AGENCY'S
DIRECTIVE UNTIL AFTER AGREEMENT OR IMPASSE OVER THE UNION'S PROPOSED
CHANGES.
QUESTION BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSED PROCEDURE AND DELAY OF
IMPLEMENTATION IS INCONSISTENT WITH THE AGENCY'S RIGHTS TO DETERMINE ITS
INTERNAL SECURITY PRACTICES UNDER SECTION 7106(A)(1) OF THE STATUTE
AND/OR TO DETERMINE THE METHODS AND MEANS OF PERFORMING ITS WORK UNDER
SECTION 7106(B)(1) OF THE STATUTE, AS ALLEGED BY THE AGENCY. /1/
OPINION
CONCLUSION AND ORDER: THE AGENCY HAS NOT ESTABLISHED THAT THE
UNION'S PROPOSAL WOULD BE INCONSISTENT WITH THE AGENCY'S RIGHTS UNDER
SECTION 7106(A)(1) OR SECTION 7106(B)(1) OF THE STATUTE. ACCORDINGLY,
PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5
CFR 2424.10 (1981)), IT IS ORDERED THAT THE AGENCY SHALL UPON REQUEST
(OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN CONCERNING THE
UNION'S PROPOSAL. /2/
REASONS: THE UNION TACITLY CONCEDES THAT THE AGENCY'S DIRECTIVE AND
THE DISPUTED PROPOSAL ARE CONCERNED WITH INTERNAL SECURITY PRACTICES
WHICH THE AGENCY HAS STATUTORY AUTHORITY TO DETERMINE. IT CONTENDS,
HOWEVER, THAT THE PROPOSAL IS NOT INCONSISTENT WITH MANAGEMENT'S
AUTHORITY AND IS WITHIN THE DUTY TO BARGAIN, AMONG OTHER REASONS,
BECAUSE IT CONCERNS ONLY THE PROCEDURE WHICH MANAGEMENT OFFICIALS WILL
OBSERVE IN EXERCISING THEIR RESERVED AUTHORITY UNDER THE STATUTE WITH
RESPECT TO THE INTERNAL SECURITY PRACTICE INVOLVED. /3/
IT IS WELL ESTABLISHED THAT PROCEDURES TO BE OBSERVED BY MANAGEMENT
OFFICIALS IN THE EXERCISE OF THEIR STATUTORY AUTHORITY UNDER SECTION
7106 ARE WITHIN THE DUTY TO BARGAIN UNLESS, IF ADOPTED, THEY WOULD DENY
SUCH AUTHORITY BY PREVENTING THE AGENCY FROM ACTING AT ALL TO EXERCISE
IT. /4/ THE RECORD SHOWS THAT THE AGENCY IS REQUIRED TO SAFEGUARD THE
CONFIDENTIALITY OF ITS FILES AND MATERIALS RELATING TO TAX RETURNS, TAX
RETURN INFORMATION, AND TAXPAYER RETURN INFORMATION. SEE 26 U.S.C.
6103. TO CARRY OUT ITS OBLIGATION TO PROTECT SUCH INFORMATION FROM
UNLAWFUL DISCLOSURE, THE AGENCY INSTRUCTED EMPLOYEES TO PLACE PROTECTED
MATERIAL IN THEIR CUSTODY IN LOCKED SPACE AT THE END OF EACH DAY.
FURTHER, AS PREVIOUSLY DESCRIBED HEREIN, TO MONITOR COMPLIANCE WITH THIS
INSTRUCTION THE AGENCY DETERMINED AS PART OF ITS INTERNAL SECURITY
PRACTICES TO CONDUCT AFTER HOURS SECURITY CHECKS OF DESKS AND CABINETS
TO SEE IF THEY ARE LOCKED AND, IN THE PROCESS, TO PROPERLY SECURE ANY
IMPROPERLY STORED PROTECTED INFORMATION, I.E., THE TAX RELATED
INFORMATION REFERRED TO ABOVE. THUS, THE SECURITY CHECK IS DESIGNED TO
ACCOMPLISH THE DUAL OBJECTIVES OF DETECTING SECURITY RISKS, I.E.,
IMPROPERLY STORED MATERIAL, AND APPLYING PROTECTIVE MEASURES, I.E.,
SECURE STORAGE, WHERE NECESSARY.
TURNING TO THE DISPUTED PROPOSAL, IT WOULD NOT BY ITS TERMS PREVENT
THE AGENCY FROM ACTING TO CONDUCT CHECKS TO REVEAL SECURITY RISKS POSED
BY UNLOCKED DESKS AND CABINETS. NEITHER WOULD IT, BY ITS TERMS, PREVENT
THE AGENCY FROM ACTING TO SAFEGUARD THE PROTECTED MATERIAL WHICH MAY BE
CONTAINED IN SUCH UNLOCKED DESKS AND CABINETS. RATHER, THE PROPOSAL
MERELY WOULD MODIFY THE PROCEDURE BY WHICH MANAGEMENT COULD ATTAIN THE
LATTER OBJECTIVE BY REQUIRING THE AGENCY TO POSTPONE SEARCHING THE
CONTENTS OF AN EMPLOYEE'S UNLOCKED DESK UNTIL THE EMPLOYEE IS PRESENT.
THIS PROCEDURAL MODIFICATION WOULD BE CONSISTENT WITH THE AGENCY'S
INTERNAL SECURITY PRACTICE OBJECTIVES SO LONG AS THE AGENCY COULD LOCK
DESKS AND CABINETS IT FINDS UNLOCKED AND, WITH RESPECT TO DESKS, DO SO
IN A MANNER ASSURING THE CONTENTS WOULD NOT BE ALTERED BEFORE THE
SUBSEQUENT SEARCH IN THE EMPLOYEE'S PRESENCE. THE AGENCY DOES NOT CLAIM
IT IS INCAPABLE OF FOLLOWING THIS PROCEDURE AND ADDUCES NO OTHER
RELEVANT INFORMATION THAT WOULD SUPPORT A FINDING THAT THE PROPOSAL
NECESSARILY WOULD PRECLUDE ACHIEVING THE OBJECTIVES OF THE INTERNAL
SECURITY PRACTICE IN QUESTION. HENCE, IN THE ABSENCE OF A SHOWING THAT
THE UNION'S PROPOSAL COULD NOT BE IMPLEMENTED CONSISTENT WITH LAW AND
REGULATION IN A MANNER WHICH WOULD ALLOW THE AGENCY TO ACHIEVE ITS
LEGITIMATE INTERNAL SECURITY OBJECTIVES, IT IS CONCLUDED THAT THE
PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE
STATUTE AS IT CONSTITUTES A PROCEDURE WHICH MANAGEMENT OFFICIALS WILL
OBSERVE IN EXERCISING THEIR STATUTORY AUTHORITY CONCERNING INTERNAL
SECURITY PRACTICES. /5/
AS TO THE AGENCY'S ALTERNATIVE CLAIM THAT THE PROPOSAL WOULD BE
INCONSISTENT WITH THE AGENCY'S STATUTORY AUTHORITY UNDER SECTION
7106(B)(1) TO DETERMINE THE METHODS AND MEANS OF PERFORMING WORK, IT
SIMILARLY CANNOT BE SUSTAINED. ASSUMING WITHOUT DECIDING THAT THE
AGENCY DIRECTIVE AND UNION PROPOSAL ARE CONCERNED WITH SUCH METHODS AND
MEANS, THE PROPOSAL LIKEWISE COULD BE IMPLEMENTED CONSISTENT WITH LAW
AND REGULATION IN A MANNER WHICH WOULD ALLOW THE AGENCY TO ACHIEVE THE
OBJECTIVES OF SUCH METHODS AND MEANS. /6/
FINALLY, THE ASPECT OF THE PROPOSAL DELAYING IMPLEMENTATION OF THE
NEW PRACTICE UNTIL THE PARTIES AGREE TO OR REACH IMPASSE ON THE PROPOSED
CHANGES DOES NOT ALTER THIS RESULT. AS PREVIOUSLY ESTABLISHED IN
DECISIONS OF THE AUTHORITY, CONGRESS DID NOT INTEND DELAY TO BE A BASIS
UNDER THE STATUTE FOR HOLDING A UNION'S PROPOSED PROCEDURE TO BE OUTSIDE
THE DUTY TO BARGAIN. /7/
IN CONCLUSION, THE AUTHORITY FINDS THE UNION'S PROPOSED PROCEDURAL
CHANGES TO THE AGENCY'S INTERNAL SECURITY PRACTICE, AS WELL AS THE
PROPOSED DELAY IN THE IMPLEMENTATION OF SUCH PRACTICE, TO BE WITHIN THE
DUTY TO BARGAIN UNDER SECTION 7106(B)(2) OF THE STATUTE.
ISSUED, WASHINGTON, D.C., DECEMBER 8, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX A
IMPLEMENTATION PROCEDURES FOR THE CONDUCT OF AFTER-HOURS
SECURITY CHECKS
ENTRY INTO UNLOCKED DESK DRAWERS AND FILE CABINETS
(IMPLEMENTATION DATE - JANUARY 2, 1980)
PURPOSE:
TO INSURE THAT ALL PROTECTED INFORMATION LISTED IN EXHIBIT 500-2, IRM
1(16)41, IS AFFORDED ADEQUATE PROTECTION. SINCE DESKS AND FILE STORAGE
EQUIPMENT IN ACCORDANCE WITH EXHIBIT 500-1, IRM 1(16)41, THEY ARE
SUBJECT TO THE SCOPE OF THE AFTER-HOURS SECURITY CHECK. ADDITIONALLY,
ALL PROTECTED INFORMATION LEFT IN AN EXPOSED AND/OR UNSECURE POSTURE
AFTER DUTY HOURS IS SUBJECT TO THE SCOPE OF THIS SECURITY CHECK,
REGARDLESS OF WHAT TYPE OF FILE STORAGE EQUIPMENT IS INVOLVED.
SCHEDULE OF EVENTS:
NOVEMBER 15, 1979 - DISSEMINATE ALL EMPLOYEE MEMORANDUM TO INFORM
DISTRICT EMPLOYEES OF THE NATURE OF THE SECURITY PROGRAM AND OF
PROCEDURES TO BE IMPLEMENTED. ADDITIONALLY, INFORM DISTRICT EMPLOYEES
THAT IF DESKS OR FILE CABINETS THAT ARE USED FOR THE STORAGE OF
PROTECTED MATERIAL ARE IN NONFUNCTION CONDITION, THAT FACILITIES
MANAGEMENT WILL HONOR SUPERVISORY REQUESTS TO TAKE APPROPRIATE
MAINTENANCE ACTION.
JANUARY 2, 1980 - EFFECTIVE DATE OF IMPLEMENTATION.
PROCEDURES TO BE FOLLOWED DURING THE CONDUCT OF AN
AFTER-HOURS SECURITY CHECK
- DESKS AND FILE CABINETS WILL BE CHECKED TO INSURE WHETHER OR NOT
THEY ARE IN A LOCKED
CONDITION.
- IF AN UNLOCKED DESK OR FILE CABINET IS NOT FOUND TO HAVE ANY
PROTECTED INFORMATION
CONTAINED THEREIN, NO ACTION WILL BE TAKEN.
- WHEN DESK DRAWERS AND FILE CABINETS ARE FOUND UNLOCKED AND CONTAIN
PROTECTED INFORMATION
(EXHIBIT 500-2, IRM 1(16)41, THE REVIEWING OFFICIAL WILL REMOVE THE
PROTECTED INFORMATION FROM
THE DESK. A NOTIFICATION WILL BE LEFT ON THE EMPLOYEE'S DESK AND THE
APPROPRIATE MANAGER'S
DESK AND THE REVIEWING OFFICIAL WILL PROPERLY SECURE THE PROTECTED
INFORMATION. THE PROTECTED
INFORMATION WILL BE RETURNED TO THE MANAGER CONCERNED THE FOLLOWING
MORNING AT WHICH TIME HE
WILL BE NOTIFIED OF THE DETAILS OF THE SPECIFIC DEFICIENCY.
APPENDIX B
PROPOSAL
TITLE: REMOVE 2ND LINE IN ITS ENTIRETY.
PURPOSE: NO CHANGE.
SCHEDULE OF EVENTS: REMOVE DATES UNTIL AFTER AGREEMENT OR IMPASSE.
PROCEDURES TO BE FOLLOWED DURING THE CONDUCT OF AN AFTER HOURS
SECURITY CHECK:
REMOVE 2ND PARAGRAPH.
3RD PARAGRAPH, 1ST SENTENCE - REMOVE ALL AFTER 1ST LINE THAT READS:
" . . . FOUND
UNLOCKED."
3RD PARAGRAPH, 2ND SENTENCE - ADD TO END OF PRESENT SENTENCE: " . .
. WITHOUT REMOVING
CONTENTS."
3RD PARAGRAPH -- REMOVE THE LAST SENTENCE IN ITS ENTIRETY.
ADD 4TH PARAGRAPH:
"THE CONSTITUTIONAL RIGHTS TO PRIVACY OF EMPLOYEES WILL NOT BE
VIOLATED, THEREFORE, UNDER NO CIRCUMSTANCES WILL ANYONE LOCK INTO OR
ENTER INTO ANY DESK OF ANY EMPLOYEE EXCEPT IN THE PRESENCE OF THE
INDIVIDUAL WHO NORMALLY USES THE DESK."
--------------- FOOTNOTES: ---------------
/1/ SECTION 7106(A)(1) AND SECTION 7106(B)(1) OF THE STATUTE PROVIDE,
IN PERTINENT PART:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY
AGENCY--
(1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE AGENCY
. . . .
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM
NEGOTIATING--
(1) AT THE ELECTION OF THE AGENCY, ON THE . . . METHODS, AND MEANS OF
PERFORMING WORK
. . . .
/2/ IN SO DECIDING THAT THE UNION'S PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THE MERITS OF
THE PROPOSAL.
/3/ SECTION 7106(B)(2) OF THE STATUTE PROVIDES, IN PERTINENT PART:
SEC. 7106. MANAGEMENT RIGHTS
. . . .
(B) NOTHING IN THIS SECTION SHALL PRECLUDE ANY AGENCY AND ANY LABOR
ORGANIZATION FROM NEGOTIATING--
. . . .
(2) PROCEDURES WHICH MANAGEMENT OFFICIALS OF THE AGENCY WILL OBSERVE
IN EXERCISING ANY
AUTHORITY UNDER THIS SECTION . . .
/4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1999
AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE EXCHANGE, FORT DIX, NEW
JERSEY, 2 FLRA NO. 16(1979), AT 2-6 OF THE DECISION, ENFORCED SUB NOM.
DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY . . . F.2D .
. . (D.C. CIR. 1981).
/5/ THE CASE INVOLVES AN INTERNAL SECURITY PRACTICE ONLY CONCERNING
THE SECURITY REPRESENTED BY LOCKED DESKS AND FILE CABINETS UNDER THE
CONTROL OF INDIVIDUAL EMPLOYEES AND THIS DECISION WOULD NOT BE
DISPOSITIVE IN OTHER CIRCUMSTANCES INVOLVING STRICTER INTERNAL SECURITY
PRACTICES SUCH AS THOSE CONCERNED WITH A SPECIAL SECURITY ROOM, VAULT OR
SAFE.
/6/ SEE NATIONAL TREASURY EMPLOYEES UNION AND U.S. CUSTOMS SERVICE,
REGION VIII, SAN FRANCISCO, CALIFORNIA, 2 FLRA NO. 30(1979); BUT SEE
NATIONAL TREASURY EMPLOYEES UNION AND INTERNAL REVENUE SERVICE, 6 FLRA
NO. 98(1981) AT 4-7.
/7/ SEE, E.G., AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
AND AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO,
2 FLRA NO. 77(1980), AT 20-23 OF THE DECISION, ENFORCED SUB NOM.
DEPARTMENT OF DEFENSE V. FEDERAL LABOR RELATIONS AUTHORITY, . . . F.2D .
. . (D.C. CIR.1981); AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1999 AND ARMY-AIR FORCE EXCHANGE SERVICE, DIX-MCGUIRE
EXCHANGE, FORT DIX, NEW JERSEY, 2 FLRA NO. 16(1979), AT 2-6 OF THE
DECISION, ENFORCED SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
RELATIONS AUTHORITY, . . . F.2D . . . (D.C. CIR. 1981).